Date: 19991118
Docket: T-1277-98
Ottawa, Ontario, this 18th day of November, 1998
Present : The Honourable Mr. Justice Pinard
Between :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
TING JUNE LEE
Respondent
ORDER
The appeal is allowed. The decision of J. Hong, Citizenship Judge, rendered April 21, 1998 is quashed on the ground that at the time the respondent applied for Canadian citizenship, he did not meet the residency requirements of paragraph 5(1)(c) of the Citizenship Act. The respondent's application for Canadian citizenship is therefore denied.
JUDGE
Date: 19991118
Docket: T-1277-98
Between :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
TING JUNE LEE
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an appeal filed by the Minister of Citizenship and Immigration pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act), of the decision of Citizenship Judge J. Hong, rendered April 21, 1998. The applicant maintains that the respondent had failed to meet the residency requirements of paragraph 5(1)(c) of the Act.
[2] The respondent landed in Canada on June 22, 1992 as an investor and was granted permanent residence status that same day. In support of his application for Canadian citizenship, dated August 25, 1997, the respondent submitted a schedule reviewing his absences from Canada. He was absent from Canada a total of 904 days in the four years preceding his application. In his affidavit, the respondent deposed that he spent at least 560 days of that four-year period in Taiwan. He also deposed that he was in Taiwan, Hong Kong and China for an additional period of 341 days. According to the respondent, these absences were for the purpose of conducting business.
[3] The Citizenship Judge decided that "the applicant . . . fully meets the residence requirement of section 5(1)(c) of the Act".
[4] The residency requirements of paragraph 5(1)(c) of the Act are the following:
| 5. (1) The Minister shall grant citizenship to any person who [ . . . ] (c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:
|
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois : [ . . . ] c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante:
|
[5] My colleague, Mr. Justice Muldoon, in Re Pourghasemi (1993), 19 Imm.L.R. (2d) 259 at 260, sets out the underlying objectives of this provision of the Act:
| . . . to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some citizenship candidates, it ought to apply to all. So, indeed, it was applied by Madam Justice Reed in Re Koo, T-20-92, on December 3, 1992 [reported (1992), 59 F.T.R. 27, 19 Imm.L.R. (2d) 1], in different factual circumstances, of course. |
(See also Re Afandi (November 6, 1998), T-2476-97 (F.C.T.D.); M.C.I. v. Kam Biu Ho (November 24, 1998), T-19-98 (F.C.T.D.); M.C.I. v. Chen Dai (January 6, 1999), T-996-98 (F.C.T.D.), M.C.I. v. Chung Shun Paul Ho (March 1, 1999), T-1683-96 (F.C.T.D.) and M.C.I. v. Fai Sophia Lam (April 28, 1999), T-1524-98 (F.C.T.D.).)
[6] This Court has held that a proper interpretation of paragraph 5(1)(c) of the Act does not require physical presence in Canada for the entire 1,095 days of residence prescribed therein when there are special and exceptional circumstances. I consider, however, that actual presence in Canada remains the most relevant and crucial factor to be taken into account for establishing whether or not a person was "resident" in Canada within the meaning of the provision. As I have stated on many occasions, too long of an absence from Canada, albeit a temporary one, during that minimum period of time is contrary to the spirit of the Act, which already allows a person who has been lawfully admitted to Canada for permanent residence not to reside in Canada during one of the four years immediately preceding the date of that person's application for citizenship.
[7] Therefore, given the substantial absences of the respondent from Canada in the present case (he was present in Canada for only 556 days leaving him short of the required 1,095 by 539 days), I find that the Citizenship Judge's conclusion that he met the residency requirements of the Act is totally unreasonable and that this conclusion is the result of an erroneous application of paragraph 5(1)(c) of the Act.
[8] Because this is an appeal, this Court is not limited by subsection 18.1(3) of the Federal Court Act and may simply quash a decision of a Citizenship Judge if, as in the present case, it does not meet the applicable test of correctness (see M.C.I. v. Su-Chen Chiu (June 9, 1999), T-1892-98).
[9] The appeal, therefore, is allowed and the decision of the Citizenship Judge, dated April 21, 1998, is quashed on the ground that at the time the respondent applied for
Canadian citizenship, he did not meet the residency requirements of paragraph 5(1)(c) of the Act. Consequently, the respondent's application for Canadian citizenship is denied.
JUDGE
OTTAWA, ONTARIO
November 18, 1999